April 22, 2004

Using ISP’s to Block Banned Web Sites

Using ISP’s to Block Banned Web Sites

The solution of using ISPs to block objectionable content by blocking web sites is both over and under inclusive and simply fails to achieve its objective. It also raises the question on who should be permitted to regulate the internet when local legislation has effects beyond its boundaries.

Wolfgang Schulz

Germany does have a clause in its constitution prohibiting censorship—Article 5(1) Grundgesetz.

In February 2002 the district government of Dusseldrof ordered several ISP’s in North Rhine-Westphalia to block access to the web sites:
www.stromfrong.org and www.nazi-lauck-nsdap.com.

There are two solutions used so far to accomplish this task. The first, blocking IP addresses, provides an overly broad solution, because other web sites sharing the IP address in question are also blocked. The second, using a proxy server, is a more narrowly tailored solution, but performs sub-optimally.

But is this really a question of coming up with a sufficiently narrowly tailored solution, is this merely a technical difficulty that can be overcome by restructuring of the web or the ways that ISPs function. Does the current architecture of the Internet assume a foundational principle of freedom of speech and non-censorship—in other words, distributed, self-moderation of content. What happens when other countries do not adhere to the strictures of freedom of speech as interpreted in the United States.

Germany recognizes an exception to its general prohibition of censorship, while you many not censor a work prior to its publication, there are lawful restrictions against freedom of speech—publications which attempt to undermine democracy are not protected by the constitution of Germany and may be lawfully censored.

Should ISP’s be forced to restructure to accommodate the requirements of other states? Must they comply with the laws of all states in which they operate, does this imply that they may be regulated by all states—what would be the outer limits of such a rule—would the island nation of Antigua be able to dictate internet law by simply adopting the most stringent requirements

Note: In Germany, it would be most helpful to ISPs to be able to qualify as a Telecommunications provider, which would enable them to escape regulation of content. In the United States, categorization as a telecommunications provider would render ISPs subject to the requirements of CALEA.

John Morris

Morris discussed the recent case in Pennsylvania over the blocking child pornography sties. The Pennsylvania law in question is targeting content which is technically illegal in Pennsylvania. The Pennsylvania statute requires ISP’s to remove child pornography from the web as accessible in Pennsylvania within five days when notified by the attorney general of Pennsylvania.

The pornography sites targeted are frequently located outside of Pennsylvania, frequently even outside of the country. Ostensibly, Pennsylvania is taking the position that it has a right to protect its citizens from this type of unlawful activity. Pennsylvania has a clear right to determine what is criminal within its boundaries—the issue that emerges in this context is what are we to do regarding the external effects of this regulation.

Stewart Baker

Baker started by explaining the two technologies currently available to perform the site blocking required by the German and Pennsylvanian legislation.

The two possibilities for blocking objectionable content is to disable the IP address or to de-list the IP address in the ISP’s equivalent of the phone book. Both means are flawed.

(1) IP addresses on the web are shared by unrelated sites. So, deactivating an IP address is necessarily overbroad.

(2) There are numerous ISP “phonebooks.” Just as in the telephone context, a user not have use the one provided by your ISP. Also, if a user already know the IP address he does not need the phonebook. This method of blocking sites is simply ineffectual.

Baker points to various other problems with the Pennsylvanian legislation:

  • ISPs don’t function on a state-to-state basis, they have to block things for all of North America—another means of being overbroad
  • Difficulties of notice—none of the sites that were blocked knew they were blocked—the child pornography sites were the first to notice their drop in usage—which just means that they switch domain-names and IP addresses
  • When an IP address is blocked, the other affected sites generally have no idea that their site is being blocked. There are no requirements of incentives to inform the affected sites. Furthermore, there are no procedures for reinstating the affected IP addresses once the objectionable content has moved.
  • Imposing liability on ISPs leads to excessive blocking. ISPs are provided with an incentive to avoid liability. There is no incentive to engage in a judicial determination of the merits of blocking the site.
  • Lastly, these measures simple fail to solve the problem. Despite Pennsylvania’s law and the ISPs’ compliance, child pornography is still available—the attorney general only targeted to one or two ISPs, all the other ones were left alone.
Posted by amalie at April 22, 2004 01:37 PM
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